Federal construction contracts often involve unforeseen delays.  The key question is who is responsible for the resulting costs.

A new decision from the ASBCA provides a blueprint for how contractors can maximize recovery for government-directed suspensions under the FAR 52.242-14 (Suspension of Work).

Understanding your contractual rights under the FAR and documenting impacts early can mean the difference between absorbing costs and recovering them.

Suspension of Work Clause Basics

FAR 52.242-14 entitles federal contractors to contract adjustments if the Contracting Officer suspends “all or any part of the work” for “an unreasonable period of time.”

The clause therefore presents four basic elements that contractors must satisfy:

  • A delay/suspension/interruption ordered by the government (in writing)
  • The delay/suspension/interruption lasts for an unreasonable time
  • An impact to contract performance, and
  • Additional costs incurred by the contractor as a result.

Easy enough – sort of.

While the elements are straightforward, questions remain about what it means for a delay to be unreasonable.

Defining an Unreasonable Suspension

In the decision, the ASBCA considered a dispute between USACE and a contractor hired for a dam repair task order. 

During the contractor’s performance, the government suspended work to accommodate an intentional release of water from the dam.  The release was expected to take about two and a half weeks but ultimately lasted 94 days.

In considering the contractor’s claim under FAR 52.242-14, the Board zeroed in on the question of whether the suspension lasted for an unreasonable period of time. 

First, the Board noted that the contractor agreed with the plan to release the water, rendering that portion of the delay reasonable. However, even after the dam reached the desired level, the Board said the government “inexplicably continued releasing water” for an additional three days.  It therefore awarded the contractor costs associated with those delay days.

Additionally, after the dam reached the desired level, the Board found that the government unreasonably continued the suspension of work “based merely upon a forecast of rain, devoid of any other specifics.”   That entitled the contractor to the costs associated with an additional seven days of delay.

Note that the contractor’s claim included additional delay days that the Board rejected based on the relationship between the delay and the “specific purpose identified by the contract.”  That is, the mere length of time does not render a delay unreasonable.  You have to take a deeper look at the intent of the contract.

Practical Takeaways

Contractors facing government-directed suspensions can use this decision to spot unreasonable government-caused suspensions of work.

Additionally, many of the best practices I have discussed before still apply to claims under FAR 52.242-14:

  • Provide Timely Notice – While you do not have to submit a full cost breakdown immediately, you must notify the contracting officer promptly when a suspension is likely to increase costs or delay performance.
  • Document Everything – Keep detailed records of labor, equipment, and overhead costs during the suspension period.
  • File a Claim – Even with a directed suspension of work, an REA or Claim is likely still required to recover from the government.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.